## I L L I N O I S 

## O F F I C I A L 

## RE P O R T S Appellate Court

People v . Y oung , 2013 IL App (4th) 120228

Appellate Court Caption THE PEOPL E OF THE STATE OF I L L I NOI S, Plaintiff-Appe l lee, v. MI CHAEL

S. YOUNG, De fenda

nt-Appellant.

District & N o. Four th District Docke t No. 4-12-0228

Filed Rehea ringdenied September 11, 2013

November

5, 2013

Held (Note : This syl lab us

con st it ute s n o par t of the opi nio n of the cour t but has bee n pre

par ed by the Repo rt er of D e c i s i o n s f

o r t h e

c o n v e n i e n c e o

f t h e

rea der

. ) De fendant’s convictions for three counts of ag g rava ted criminal sexual abuse wer e upheld over his contentions that his right to be prese nt during

a “critical stag e” o f h is trial was violated when the rec ording s of the victims’ interviews wer e revie wed by the trial court outside defe ndant’s prese nce a

nd that his motion to suppr ess his confession wa s improperly denied beca

use he invoked his right to c ounsel, since the cour t’s revie w of t he recording s was not a critical st age of defendant’ s trial, defe ndant

was prese nt at all critica l stag es, defe nse counsel waived any objection to the court’s revie w of the rec ording s, and the rec ord supported the trial court’s findi n gs t h at the statements defe ndant made at the time of his confe ssion wer e mere ly musings about what would happen if he asked for

an attorney and that he did w aive his right to counsel rathe r than invoke that right.

Dec ision Under Review Appea l from the Circuit Court of L ivingston County
, No. 10-CF- 135; the Hon. J ennife r H. B auknec ht, J udg e, pre siding.

J udg ment Affir med.Counsel on

Appea l Michae l J

. Pell et i er , Karen Munoz, and Duane E. Schuster, all of State Appellate D efe nder’ s Offic e, of Spring field, for appellant.

Seth Uphoff, State’s Attorney
, of Po n tiac (Patrick Delfino, Robert J

. Bi d erman, and Luke McNe ill, all of State’s Attorney s Appellate Prosecutor’ s Offic e, of c ounsel), for the People.

Panel PRES IDI NG J USTI C E STEI GMANN delivere d the judgme nt of the court, with opinion.
J ustices Pope and Holder Whit e concur red in the judgme nt and opinion.

OP INION

¶ 1 Following a November 2011 bench trial, the trial court convicted defe ndant, Michae l S. Young
, on three counts of ag g ravated crimi n al s ex ual abuse (720 I L CS 5/12-16(c) (1)( i) (West 2010)). The court fo u n d that during three separ ate incidents, defe ndant cause d two minor g irls to rub their hands on his penis for the purpose of defe ndant’s sexual g ratification. For that conduct, the c ourt sentenc ed def endant to eight y ear s in prison. ¶ 2 Def

endant appea ls, a

rguing that the trial court (1) violated his c onstitut ional right to be prese nt during the critica l stag es of his trial when the court consi dere d digital video disc (DVD ) rec ording s of the victims’ interviews outside of his prese nce and (2) err ed by denying his motion to suppress his confe ssion, g iven that he invoked his right to counsel. Be cause the

rec ord shows that defe ndant (1) was prese nt a t all critical stag es of his trial and ( 2) wa ived his right to counse l, we af firm.

¶ 3 I . BA CKGROUND ¶ 4 A. The State’ s Charg es ¶ 5 I

n Ju n e 2010, the State charg ed defe ndant with three counts of ag g ravated criminal sexu a l abuse (720 I L CS 5/12-16(c) (1)( i) (West 2010)). The State alleg ed that defe ndant–who was 30 year s old at the time–(1) cause d a seven- year -old g irl to rub his penis for defe ndant’s

s ex ual g ratifica

tion and (2) cause d a nine-year -old g irl to rub his penis on two separat e

occa sions for def

endant’ s sexual gratification.

¶ 6 B. The State’s Section 115-10 Motion and the Subseque nt Hearing ¶ 7 Def

endant’ s case proce eded to an October 13, 2010, hearing on the S t at e’ s m o t ion to admit the child victims’ out-of-c ourt statements under section 1 1 5 -1 0 o f the Code of Criminal Procedur e of 1963 (725 I L CS 5/115-10 (Wes t 2 0 1 0 ) (p ermitting hear say statements

-2-of a child victim under the ag e of 13 as substantive evidenc e in, am o n g others, case s

involving sex crimes) ). Def endant was prese nt at that hearing, and the State pre s en t ed testi m o n y from the children’ s mother and two other witnesses about the out-of-c ourt statements. The State also submitt ed as exhibi ts (1) the DVD interviews of the children and (2) a written transcript of the content of t h e DVDs. Shortly there afte r, the State sug g ested
t h at , du e t o time constraints, the court revie w the DVDs at its leisure. Turning to defe nse counsel, the court asked whether counsel wanted to “view the[ ] DVDs in open court or [whether] there [was] an objection if [t h e co u rt ] view[ed] them and [came] back for a ruling ? ” De fense counsel re sponded, as f ollows: “Your Honor, I would just like the opportunity to argue. [I ]t does not matter when the Court revie ws them. I ’m not asking that they are revie wed right now. I just would like an opportunity

to argue, and I

can put it in writingor we can c ome af ter[ward].” ¶ 8 W h en d ef

endant’ s section 115-10 hearing resumed on October 29, 2010, th e S t at e indicated that the child victims would be available to testify

. After considering the evidenc e prese nted, including the DVDs–whic h the trial court had revie wed o n i t s own–the court found the c hildren’s out-of -cour t statements admissible under sec tion 115-10.

¶ 9 C. Defe ndant’s Motion To Suppress His

Confession to Poli ce a

nd the Subsequent He aring ¶ 10 In Fe bruar

y 2011, defe ndant filed a motion to suppress his confe ssion. At the April 2011 hearing on defe ndant’s motion, the parties prese nted testimony from the investiga ting office r and def endant. ¶ 11 Serg ean t J ef

fre y Hamilton testified t hat he questioned defendant severa l day s afte r the
events that g ave rise to the charg es in this case

. Hamilton explained that befor e doing so, he advised defe ndant of his rights pursuant to Miranda v. Arizona
, 384 U.S. 436 (1966), and defe ndant waived his right to have co u n s el prese nt during questioning. Def endant also initialed and signe d a written waiver of his Miranda rights. (That waiver was introduced into evidenc e at the hearing.) Hamilton said that defe ndant did not reque st to speak with a lawyer or to have a lawyer pr esent for questioning. ¶ 12 Def

endant testified that he did ask to speak to a lawyer. Def endant claimed that when he asked to speak to a lawyer, Ham i l t o n re plied that he would consider that “being uncooper ative with the State.” Def endant said that when Hamilton continued to interrog ate him, he was lef

t with the impression that he could not ask for a lawyer a fter that point. ¶ 13 Hamilton’s repor t, which in cl u d ed d ef

en d an t ’s co n fe s s ion and was admitted into evidenc e, stated, in pa

rt, as follows: “[Defe ndant] asked if it would be considere d uncooper ative if he woul d want to continue this with his attorney prese nt. I explained to him that once he steps off the path of cooper ation I can no longer help him. [Defenda nt] said that is understanda ble. [Defenda nt] said what he was asking if that would be considere d not being cooper ative. I told him I could not say that without contac ting the State’s Attorney ’s office

. I advised him that the State’s Attorney ’s offic e and his kids want the tr uth.”

-3-¶ 14 On t his evidenc e, the trial court denied defe ndant’s mot ion to suppress his confe ssion,

finding , as follows: “The Def endant [has] a re as o n to lie. He is fac ing some pretty serious charg es, is

aw are at the time that he’s testifying that there ’s no DVD that’s g oing to be able t o

corr oborate one way or the other the statements, the reque st for an at torney whether it was made or not made. The Def endant’ s rec ollection of the interview was p retty vague except when he wanted to point fing ers at what *** Hamilton appar ently alleg edly did wrong

. I ’m not quite fra nkly convince d that the Def endant saying I would like to speak to an attorney alone and then continuing to answe r questions is sufficie nt to invoke Miranda

. I believe there ’s case s out there that sug g est that there has to be something more than just a mere statement. There has to be som ething in addition to that. I ’m pre t t y s u re that that’s t he

case . But e ven so, I ’m not convince d that the Def endant e ven aske d for a

n attorney

. I don’t find the Def

endant to be as cre dible of a witness as *** Ha m i l t o n for the

rea sons I think I ’ve alre ady set forth. The Def endant does have re as o ns to lie. The Def endant is fac ing some pretty serious charg es here

. *** [T] here is absolutely nothing in th[ e] report sug g estingthat the Def endant a sked for

an attorne y

. So I find *** Hamilton’s testimony to be more cre dible than that of the Def endant’ s

on the i ssue of whether or not the Def endant asked for an attorney ; and as a matter of fac t, I find that the Def

endant did not ask for an attorney during the interview proce ss.”

¶ 15 D. Def endant’ s Trial and Subseque nt Sentence ¶ 16 Following a November 2011 bench trial, the trial court convicted defe ndant on all three
counts of aggravated criminal sexual ab u s e (720 I L CS 5/12-16(c) (1)( i) (West 2010)). The
court there afte r sentenc ed defe ndant to eight year s in prison on eac h count and order ed those
sentenc es to run conc urre ntly

. ¶ 17 This appea l followed.

¶ 18 I I . ANALYSI S ¶ 19 Def

endant argues that th e t ri al court (1) violated his constitutional right to be pre sent during the critical stages o f h i s trial when the court considered the DVD recor dings of the victims’ interviews outside of his prese nce and (2) err ed by denying his motion to suppress his confe ssion, g iven that he invoked his right to cou n s el. We addre ss defe ndant’s contentions in turn.

¶ 20 A. Def endant’ s Claim R elated to the D VD Rec ording s of the Vic tims’ Interview s ¶ 21 Def

endant first contends that the trial court violated his constitutional right to be prese nt during the critical stag es of his trial when the court consid er ed t h e DVD recor dings of the victims’ interviews outside of his pre sence . We disag ree

.

-4-¶ 22 Initially
, we note that defe ndant aff irmatively waived any chal l en ge t o the trial court viewing the DV Ds o u t s i de of his prese nce. People v. Dunlap
, 2013 I L App (4th) 110892, ¶ 12 (“When *** defe nse counsel aff irmatively acquie sces to actions taken by the trial court,

a defe ndant’s only challeng e may be prese nted as a claim for ineffe ctive assistance of counsel

on collater al attack.” ). Appar ently
, defe ndant’s position is that we should revie w his contention beca

use defe nse counsel could not waive his right to be prese nt at such a critica l stag e of his trial. Be cause , as we will explain, the trial court’s viewing of the DVDs was not

a “critical stag e” o f d ef

en d ant’s trial, we conclude that (1) defe ndant has aff irmatively waived his claim that the court err ed by revie wing the DVDs outside of his prese nce and (2) we need not re view that cla im further. See Dunlap , 2013 I LApp (4th) 110892, ¶ 12 (plain

err or does not apply

to issues that have be en af firmatively

waived)

. ¶ 23 A crim i n al d efendant has a right to be prese nt at ever y critica l stag e of his trial. More specific ally
, a defe ndant has a “right to be prese nt at any stag e of the criminal proce eding that is critical to i ts outcome if his prese nce w ould contribute to the fa irness of the pr ocedur e.” People v. Lofton
, 194 I ll. 2d 40, 67, 740 N.E.2d 782, 797 (2000) (citing Kentucky v. Stincer
, 482 U.S. 730, 745 (1987), and Snyder v. Massachusetts
, 291 U.S. 97, 1 0 5 -06 (1934))

. Howeve r, a defe ndant’s prese nce is not require d “ ‘whe n prese nce would be useless, or the benef it but a shadow.’ ” L o

f t o n , 1 94 I ll. 2d at 67, 740 N.E.2d at 797 (quoting Snyder
, 291 U.S. at 106-07). The touchstone of this analy sis is “whe ther the defe ndant’s prese nce at the proce eding would have contributed to his opportunity to defe nd himself ag ainst the charg es.” Id.
, 740 N.E.2d at 798. Whether a stag e of trial is a “critical stag e” is a question of law that

we revie w de novo

. See id. (dete rmining whether a s ec t i o n 115-10 hearing was a “critical stag e” by revie wing “[t] he jus tice or injusti ce of the ex clusion of t he de fe n d an t * * * in the light of the whole re cord” ). ¶ 24 He re , n o question exis ts that the section 115-10 hearing was a critica l stag e and tha t def en d an t had a right to attend that hearing in person. See Lofton
, 194 I ll. 2d at 67, 740 N.E.2d at 797 (holding that a section 115-10 h earing was a “critical stag e”)

. The rec ord shows, and defe ndant conce des, that he attended the section 115-10 hearing i n t h i s case

. Def endant’ s claim is that he was entitled to be prese nt when the trial court viewed the DVDs of t he victims’ statements. The problem with defe ndant’s position in this reg ard is that his prese nce during the vi ewing of t hose DVDs would have be en useless beca use defendant’ s p r e sence would not have contributed to his opportunity to defe nd himself ag ainst the charg es

. De fe n d an t was present for the proceeding s leading up to the review of the DVDs and was later prese nt for his counsel’s arguments related to whether the statements from those DVDs should be admitted. Def

endant’ s not beingprese nt while the cour t watche d and li stened to those DVDs did not amount to an absenc e from a critica l stag e of the proce eding s. In short, the court’s watching and listening to the DVDs was not a “critical stag e” of defe ndant’s trial. The critica l stag e here was the portion of the section 115-10 hearing that provided defe ndant the opportunity to defe nd his position that t h e statements from those DVDs wer e inadmissible. See People v. St r o ud
, 208 I ll. 2d 398, 405, 804 N.E.2d 510, 514 (2004) (conc luding that e ven whe n a def endant has the right to be prese nt beca use the proc eeding is a “critical stag e,” a defe ndant’s absenc e is not a per se constitutional violation–indeed, a defe ndant’s abse nce f

rom such a pr ocee ding w ill violate hi s constitutional rights “ ‘ only if

-5-the rec ord demonstrates that defe ndant’s absenc e cause d the proce eding to be unfair or if his

absenc e resulted in a denial of an underly ing substantial right’ ” (quoting People v. Lindsey
, 201 I ll. 2d 45, 57, 772 N.E.2d 1268, 1276-77 (2002)) ). The rec ord in this case clea rly shows that defe ndant was pr esent duringthe vital, or “c ritical,” por tion of the hea

ring

. ¶ 25 Be cause the trial court’s viewing of the DVDs did n o t co n stitut e a “critical stag e” of defe ndant’s trial, we conclude that defe ndant has aff irmatively waived h i s cl ai m that the
court erre d b y re v i ewing the DVDs outside of hi s prese nce. Counsel’s waiver is eff ective, of course , beca

use it did not involve a waiver a fundame ntal righ t

. T h e United States Supreme Cour t, in a case involving defe nse counsel’s consenting to a mag istrate judge presidingover jury selec tion, e x plained that a defe ndant is bound by his attorney ’s waive r, as follows: “ ‘W hat s uffice s for waiver depends on the nature of t he right at i ssue. “[ W] hether the defe ndant must pa

rticipate persona lly in the waiver ; whether cer tain proce dures are require d for wa iver; and whether the defe ndant’s choice must be par ticularly informed

or voluntary
, all depend on the right at stake.” United States v. Olano
, 507 U.S. 725, 733 (1993). For cer

tain fundame ntal rights, the defe ndant must persona lly make an informed waiver

. See, e.g. , Johnson v. Zerbst
, 304 U.S. 458, 464-465 (1938) (r ight to counsel); Brookhart v. Janis
, 384 U.S. 1, 7-8 (1966) (right to plead n ot guilty). For other rights, howeve r, waiver may be eff ecte d by action of counsel. “Although there are basic rights that the attorney cannot waive without the fully i n fo rm ed and publicly acknow ledg ed
consent of the client, the lawyer has–and must have–f ull authority to manag e the conduct of the trial.” Taylo r v. Illinois
, 484 U.S. 400, 417-418 (1988). As to many decisions perta ining to the conduct of the trial, the defe ndant is “ deeme d bound by the acts of his lawyer- ag ent and is consi d ere d to have ‘notice of all fac ts, notice of which can be charg ed upon the attorney .’ ” Link v. W abash R. Co.
, 370 U.S. 626, 634 (1962) (quoting Smith v. Aye r , 101 U.S. 320, 326 (1880))

. Thus, decisions by counsel are g ener ally g iven eff ect as to wha t argume nts to pursue, see Jones v. Barnes
, 463 U.S. 745, 751 (1983), what evidentiar

y objections to raise, see Henry v. Mississippi
, 379 U.S. 443, 451 (1965), and what agree ments to conclude reg arding the admission of evidenc e, see United States

v. McG ill
, 11 F. 3d 223, 226-227 (C A 1 1993). Absent a demonstration of ineffe ctiveness, counsel’s word on such matters is the last.’ Ibid. ” Gonzalez v. United States
, 553 U.S. 242, 248-49 (2008) (quoting New Y ork v. Hill
, 528 U.S. 110, 114-15 (2000))

. ¶ 26 Having conclude d that (1) defe ndant persona lly appea red at all critica l stag es of his tria l and (2) he is bound by his counsel’s decision to waive any objection t o t h e t ri al court’s viewing the DVDs outside of defe ndant’s prese nce, we turn to defe ndant’s claim that the
court e rre d by

denying his motion to suppress his confe ssion.

¶ 27 B. D efe ndant’s Claim That the Tria l Court Erred by

Deny ing H is Motion To S uppress His Confession ¶ 28 Def

endant next contends that the trial court err ed by denying his motion to suppress his confe ssion, gi v en that he invoked his right to counsel. Def endant posits that the court’s

-6-fac tual findingthat defe ndant did not r equest counsel was incorre ct as a matter of la w. We disagree

.

¶ 29 1. The Standard of Review ¶ 30 When review ing a trial court’s ruling on a mot ion to suppress, we e mploy a bifurc ated standard of revie w, “re viewing a trial court’s fac tual finding s under a manifest weight of the

ev i dence standard of revie w but applying a de novo standard of revie w to the u l t i m at e question whether the evidenc e should be suppressed.” People v. Harper
, 2012 I L App (4th) 110880, ¶ 22, 969 N.E.2d 573.

¶ 31 2. The Trial Court’s Factual Findings ¶ 32 Her e, Hamilton testified that defe ndant did not reque st to speak with a lawyer or to ha ve

a lawyer prese nt for questioning. Def endant testified that h e d i d as k to speak to a lawyer. Hamilton’s repor

t indicated that defe ndant asked whether “it would be co n s i d er ed uncooper ative if he would want to co n t i nue this with his attorney prese nt.” The repor t showed that Hamilton replied by explaining to defe ndant that “once he steps off the path of cooper ation [Hamilt on could] no longe r help him” and that defe ndant said that he understood that. The report furthe r showed that defe ndant said that he wa s askingif invoking his right
to counsel would be considere d “not being cooper ative” and that Hamilton told him that “he could not say that without contac ting the State’s Attorney ’s offic e. ” On t h is evidenc e, the trial court spe cifica lly

found Hamilton credible. ¶ 33 A re as o n ab l e re ading of the trial court’s ruling indicates that the court fo u n d (1 ) defe ndant’s statements mere ly ref lected defe ndant’s musings about what would happen if he

wer e to invoke his right to counsel and (2) those musings wer e insufficient to invoke his right
to counsel. Our revie w of the rec ord reve als that the trial court’s finding s in that reg ard wer e not ag ainst the m anife st weight of t he evidence. See In re Guardians hip of K.R.J.
, 405 I ll. App. 3d 527, 536, 942 N.E.2d 598, 605 (2010) (A finding of fac t is only ag ainst the manifest weight of the evidenc e when, “ ‘upon revie w of all the evidenc e in the light most favor able
to the preva iling party , an opposite conclusion is clea rly appar ent or the fac t finder’ s finding is pa lpably err oneous and wholly unwar rante d, is c lear ly the result of passion or prejudice
, or appea rs to be arbitra

ry and unsubstantiated by the evidenc e.’ ” (quoting Joel R. v. Board of Education of Mannheim School District 83
, 292 I ll. App. 3d 607, 613, 686 N.E.2d 650, 655 (1997))

.

¶ 34 3. The Ultimate Question of Suppression ¶ 35 Having conclude d that the trial co u rt ’s finding that defe ndant’s musings about what would happen if he invoked his right to counsel wa s not ag ainst the manifest weight of the evidenc e, the ultimate question of whether the trial court err ed by denying defe ndant’s motion to s uppress is an e asy one to answe r. It did not. ¶ 36 Her e, Hamilton provided defe ndant Miranda war ning s , d e f e n d a nt d id n o t v e r

b a lly in voke his right to counsel, and defe ndant signed a written waiver

. This is sufficie nt to support a

-7-valid Miranda waiver

. Acc ording ly
, we conclude that the trial court did not err by denying

defe ndant’s motion to suppress his post-Miranda confe ssion.

¶ 37 I I I . CONCLUSI ON ¶ 38 For the rea sons stated, we aff irm the trial court’s judgme nt. As part of our judgme nt, w e

awa rd the State its $50 statutory assessment as c osts of this appeal.

¶ 39 Affir

med.

-8-